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Not to yield

Ben Fenwick May 4th, 2006

After escaping Nazi-ravaged Poland and coming to Oklahoma, he rose to the state's highest court. Now he faces a different type of legal struggle.

The ethnic cleansing began shortly after the Nazis marched into Poland in 1939. Marian P. Opala was 18 when they forced his family to flee their home in Lodz.

"They would pick up people at night and put them on trains and ship them into the western parts of Poland," said Oklahoma Supreme Court Justice Opala, now 85. "After that, all ethnic Poles were scared and they started moving on their own. We moved on our own because we felt extremely insecure after those nocturnal resettlements"¦ forced resettlements."

Into the frying pan
Into the fire
Too old?
Fateful meeting

It was war that tore him from his home, brought him near death and eventually landed him in Oklahoma. Those experiences still shape his view of the law and government that guide the fate of his adopted home.

"To someone like me, born and raised between Stalin and Hitler, anything on the left and anything on the right was absolute poison," Opala said. "I'm so glad I was born during that era because I never had an opportunity to acquire pro-left or pro-right bias, because pro-right meant to be a Nazi and pro-left meant to be a Communist and both were my enemies."

Now Opala faces a new test of the law his career helped guide. In 2005, Opala filed suit against his fellow justices. He claims that as he was about to assume the position of chief justice, the eight other justices on the court changed a 45-year-old rule, "Rule 4," and chose Justice Joseph Watt to serve again as chief " twice in a row.

Perhaps the other justices weren't expecting a fight. But then, nobody expects a life like Opala's.

Into the frying pan
The coded messages from the resistance came over the phone, Opala said. He had joined the resistance against the Nazis in 1939, when he was 18. His family had resettled in Warsaw.

"To this day, I don't know who they were," Opala said. "They would give certain code names to assure me that they were with the underground. Those code names were changed from time to time. So somebody calls me and says, '20-0-1.' So I know that I am awaiting orders."

Opala still speaks with a thick Polish accent. He enunciates with precise language, but his native tongue still colors his speech, the shadow of the long-ago teenager he was, who would have been hanged if the Nazis had caught him.

"They would tell me to be somewhere at a certain time and I knew from that I was to pick up my orders at that point," Opala continued.

"Orders were never given over the phone. It was an extremely well-organized machine and I cannot tell you who these people were, where they came from, what their education was. They all spoke Polish. Polish was the only language we communicated in."

Once, the underground called out the young Opala to assist in blowing up a rail line the Germans used to transport troops into Poland. Later these lines would serve an even darker purpose, leading to the death camps like Auschwitz.

"The most significant mission I ever was in was destroying railroad lines "¦ cutting off rails, creating a break which would prevent the Germans from using the rail line for transporting troops," Opala said. "In most other things, I translated from English into Polish and from Polish into English."

A banker's son, Opala was valuable to the resistance because his parents taught their son English as well as French. The underground considered him important enough not to expend him in street fighting. At least not yet.

"I did what they told me to do until they told me to pick up and leave Poland," Opala said. "I suspect the reason they did that was because I knew English and they probably needed English-speaking Poles in the Polish army under the British command.

Badly so. The Polish army was subject to orders by the British command. So there had to be people capable of translating."

Opala said he escaped through Bulgaria into Turkey.

"I reported to the Polish consulate in Constantinople," Opala said. He laughed slightly. "I still talk like a Pole," he said. "Istanbul is never Istanbul in Polish. It's always Constantinople. That's Christian bias. Simple Christian bias."

Upon reporting to the Polish consulate in Istanbul, they informed him he was drafted.

"The Polish consulate said, 'You're subject to the draft. You have to report to the British consulate.' And I did and was drafted into the Polish army. It was that simple. I joined the army and they shipped me immediately into Palestine."

In those days, a British occupying force ruled Palestine. Burgeoning Axis forces in North Africa, moving steadily toward the Middle East, led by famed German Field Marshall Erwin Rommel, the "Desert Fox," threatened the British forces.

"After the Brits had driven the Italians out of Ethiopia, they used Ethiopia as training grounds for allied forces," Opala explained. "And they had a lot of Polish people from Russia because the British facilitated an agreement with Stalin (who had taken over half of Poland by an agreement with Hitler). Thousands of Polish families in Russia would be released to the British. So the Brits got probably several million Poles that way."

Indeed, many Poles had been sent to the Siberian work camps by Stalin" those whom he hadn't ordered shot and buried in mass graves. The Siberian Poles ended up getting a reprieve from slow death in the Gulag work camps. But the reprieve was short-lived.

In a foreshadowing of things tocome, Opala and his fellow Poles were assigned to an international force in Italy that included the 45th Infantry Division " the Thunderbirds " comprised of many Oklahomans. The Allied forces by this time were involved in the assault on the mountaintop Axis fortress of Monte Cassino, an ancient monastery used as a command center by the German army. The Allies fought for months to dislodge the Germans, in bloody assault after bloody assault.

In one of the more tragic episodes of the war, the Poles in the campaign suffered some of the worst casualties " but Opala was not among them.

"I received orders to London," Opala said. "I probably would not have survived because the casualty rate was something like 80 percent. The Poles took the peak. But they lost 80 percent of the troops who were engaged in that. So I got orders that saved my life because I went to London. In London, I was told that I would be returning to Poland."

Into the fire
"I was dropped in August 1944, when the Polish underground was engaged in open warfare with the Germans in Warsaw," Opala said. "It was my third parachute drop in my life. They just taught me enough to survive a drop. I was no experienced paratrooper."

Opala was assigned to the Polish army under British command, where he received rudimentary parachute training. The war was in full swing, with fronts throughout Eastern Europe, France and Belgium, and other farflung battles against the Axis powers.

Opala's previous experience with the Polish underground would serve him well.

"They dropped me on the Polish side," Opala said. "It took me no more than two hours to find the Polish underground."

Opala described his resistance commander as "a very tough captain." Opala's unit fought in pitched combat until about a dozen were left. His unit took German prisoners, an act he described as unusual.

"The Poles didn't take Germans and keep them alive," Opala said. "They would shoot them. Both sides would shoot prisoners. He (the resistance captain) fought the way he was taught, by strict adherence to the Geneva Convention. And that saved my life. The Germans captured me. All of us."

To this day, "underground" or "insurgent" fighters out of uniform are not afforded Geneva Convention rights. For instance, the United States currently incarcerates al-Qaida and other insurgent fighters in Guantanamo Bay's detention facility indefinitely, citing the prisoners' non-Geneva status (over the protests of many). In the German army's case, they simply executed partisans on the spot. But Opala's situation was different.

"I had a British uniform on and my Polish colleagues had insignia to conform to the Geneva Convention. I know that most captured underground fighters did not receive that protection. But we did. I was lucky and I attribute that to the fact that we had live Germans," Opala said.

His captivity was relatively benevolent compared to what it could have been. Afforded prisoner-of-war status, Opala avoided the fate of many. By this time in World War II, the famed Nazi death camps were in operation, where perished many partisans as well as ethnic and political prisoners.

Instead, Opala and his fellow Poles were transported to the Sudetenland, a region of Czechoslovakia (now the Czech Republic), where he was incarcerated.

While the POW camp was better than Auschwitz, he still suffered bouts of sickness from the food " which he described as "bleak" " and grappled with the constant uncertainty of his fate. Opala said that at one point, the guards, perhaps wishing to create records that they treated the prisoners well, began allowing delivery of Red Cross packages. He said the food in them was so rich it made him ill to eat it.

One morning, the guards marched Opala and his fellow prisoners from the camp for a purpose they refused to disclose.

"Apparently, they had good intelligence that the Allies were too close for their comfort and they didn't want to be caught with a bunch of POWs because that might have subjected them to trials," Opala said. "They were afraid of trials. So one morning, they woke us up, didn't feed us, made us march and they disappeared suddenly."

Opala and his fellow soldiers were turned loose into a world of anarchy. He and the others knew friendly Allied soldiers could shoot them as easily as could German units. When Opala's group came upon a farm, they hid in a large haystack. The moment of contact with the Americans was a fearful one. He described them as infantry backed by tanks. Opala's voice shook when recounting it.

"I just get very emotional about that," he explained. "We hid in the haystack. I could speak English. When the Allied troops came, we spotted them by their uniforms and called out. I said in English, 'Here are Polish soldiers released two days ago from a German POW camp.' We all came out scared to death because we didn't know whether the Germans were nearby or who controlled the territory. We saw only about five U.S. soldiers. As it turned out, the U.S. forces were in command."

A whirlwind of events followed that catapulted Opala into a new life.

He met Gene Warr, an American officer from Oklahoma, who befriended Opala and kept track of his case as the war ended. Meanwhile, events changed in England as much as in Germany. With the fall of the Nazis, Winston Churchill was voted from office and his party removed from power.

Instead, the Labour Party ran the government, which had stronger sympathies to Stalin's Communist government. Opala feared the British government would decide to deport the million or more displaced Poles living in Britain back to Poland and into decades of Communist-dominated rule.

Again, Opala's fate lay in the balance. A capitalist banker's son expunged to live under Stalinist rule would likely be given a death sentence.

Then came the letter stating he would be allowed to immigrate to the United States, Opala said. The British were "ecstatic" to be rid of all the Poles, he said, and the king of England paid his ticket to the United States.

Opala arrived at the port of New Orleans and within hours was on a train to Oklahoma City.

In Oklahoma, Opala attended night school at Oklahoma City University, which garnered him a law degree and a future. He said he "needed to learn more about the law" and attended New York University, getting his master's degree. In Oklahoma, he practiced law, but eventually worked for the Supreme Court of the state of Oklahoma. He attained the position of administrative director of the state's courts. In 1978, then-Gov. David Boren named Opala a justice on the court.

"Twenty-seven years, I've been here as a judge. That's a long service," Opala said.

He served once as chief justice in 1991-92. For 45 years the court chose chief justices on a rotating basis, with the newest justices named to the court serving last in succession. In 2004, Opala would have been named again, a not-uncommon occurrence. Instead, something else happened.

Too old?
According to Opala's federal complaint, he discussed with Justice James Winchester his eligibility. Winchester told him there were no obstacles to his assumption of the office "unless the rules were changed," according to the brief.

All the while, Opala alleges, other justices connived to prevent him from taking the office for which he was again due.

"Plaintiff is informed and believes and thereon further alleges that sometime before November 4, 2004, some of the Defendants discussed a change in Rule 4 governing the election of the Chief Justice to allow the Chief Justice to succeed himself or herself although Plaintiff was not privy to those discussions," according to Opala's complaint.

By the time he knew of the vote, Opala alleges the justices had already aligned against him. A memo Opala wrote in protest over the rule change reads: "I abstain from participating in the votes on: (1) any proposed changes in Rule 4 that governs election of the chief justice and (2) the chief justice who will succeed the present incumbent. By my abstention I formally protest against the manner in which both of these issues came to be tendered for today's resolution."

Neal Leader, the attorney defending the rest of the court from Opala's lawsuit, works for Oklahoma Attorney General Drew Edmondson, the brother of Oklahoma Supreme Court Justice James Edmondson. Senior Assistant Attorney General Leader said he could not comment on the case as it goes before the 10th U.S. Circuit Court of Appeals.

In his brief, however, Leader alleges that Opala had to know of the rule change because of the memo he filed out of protest.

"In stating he was abstaining from 'participating in the votes,' on both matters, Justice Opala shows he understood that there was, in fact, an election and that votes would be cast on such issues " all contrary to the allegations in and out of his complaint," Leader writes.

The brief claims that Opala merely lost a vote " his fellow justices wished Watt to sit as chief. The new rule voted in by the justices " from which Opala notably abstained " merely allowed the court to choose Watt once more, Leader alleges.

Opala largely refused comment on the case. He did say he merely wants the court's own rules to be followed, the rules that were originally written before the recent change.

At 85, Opala faces an uphill battle even if the 10th Circuit upholds his lawsuit. Such a fight often takes years to settle. Opala's attorney, Stan Ward, wrote: "Plaintiff 's age was a significant factor in the discriminatory treatment "¦ (and) "¦ Plaintiff has been denied the opportunity to be nominated for and selected as Chief Justice."

Although Leader's brief claims Opala was not denied the chief 's position due to his age " Leader also argued there is no federal right against age discrimination for judges.

On the other side of the argument, Opala said he is in good health.

"I'm very fortunate in that I'm still driving without glasses," Opala said. "I just passed my 85th birthday in January. So I'm slightly over 85. I'm extremely fortunate."

Leader's appeal against Opala will go before the 10th U.S. Circuit Court of Appeals on May 10.

Fateful meeting
When Marian P. Opala's Polish resistance unit escaped the Nazis and reunited with the Americans, Opala was sent to an American camp in Czechoslovakia. There Opala met a young American officer who would change his destiny.

"That short time that I was under American control, I met Gene Warr, C.B. Warr's son, from Oklahoma City. We became good friends within those three weeks. Then we corresponded," Opala said.

C.B. Warr was the real estate developer for whom Warr Acres is named. Warr had connections.

Meanwhile, Britain's government was to return Opala and other Poles to Poland, according to the Potsdam Agreement signed by President Harry S Truman.

"There should be a Provisional Government of National Unity (recognized) by all three powers, and that those Poles who were serving in British Army formations should be free to return to Poland," the agreement stated.

Since Stalin, perhaps history's most notorious Communist, now ruled over Poland, Opala, a banker's son, would likely have been sentenced to Siberia if he returned.

Opala said when Warr wrote to him, he told the officer his predicament.

"He said, 'Why don't you come to Oklahoma?'" Opala said, emotion welling in his voice. "He said, 'All you have to do is tell me that you want to because my father is acquainted with Sen. Mike Monroney and he has access to the White House.' I remember it word-for-word what he wrote: ' "¦ and he has access to the White House.' After I wrote back and said I would like to apply for a U.S. visa, in 72 hours, I had a U.S. visa."

In weeks, Opala arrived in Oklahoma. "Ben Fenwick

top photo Oklahoma Supreme Court Justice Marian Opala, pictured with Poland's symbolic white eagle in the background, turned 85 in January. Photo/Shannon Cornman
bottom photo Marian Opala, circa 1947, when he was in his mid-20s.
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